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Clouds of Mystery: Dispelling the Realist Rhetoric of the Uniform Commercial Code

It is routinely taught in American law schools that the Uniform Commercial Code is a product of the Legal Realist movement. Karl Llewellyn, the principal author of Article 2 (Sales of Goods), was, after all, one of the leading Legal Realists. The conventional wisdom is that Article 2 was a direct result of Llewellyn's attempt to create a statute that would reflect the realities of the marketplace and be a useful and understandable tool for business people.

Yet there is remarkably little Realism in Article 2. To a much larger extent than is usually recognized, Article 2 is a simple recodification of earlier law, particularly the widely reviled Uniform Sales Act written by Samuel Williston. Those portions of it which are major innovations do not, when examined, show evidence of any Legal Realist spirit, but reflect much more Llewellyn's normative vision of a collectivist mercantile world purged of aggressive competition. His goal was not to make the law responsive to merchant practices, but rather to mold merchant practices into his own vision of good business.

This paper, part of an AALS Symposium on Commercial Calamities, argues that those of us who teach Article 2 to students should abandon the fiction that we are dealing with the product of actual marketplace analysis by disinterested experts, and confront directly the normative (and often controversial) choices made by the drafters.